Dempsey; Secretary, Department of Social Services and (Social services second review)

This matter concerned an appeal by the Secretary of the Department of Social Services against a decision of the Administrative Appeals Tribunal (AAT). The dispute centred on Mr Dempsey's eligibility for an age pension, specifically whether he met the residency requirements under the *Social Security (Administration) Act 1999* (Cth) at the time of his claim. Mr Dempsey, an Australian citizen and former Defence Force member, had spent significant periods overseas, primarily in Vietnam, since 2014. He applied for the age pension in May 2018, departing Australia shortly thereafter. His claim was rejected on the grounds that he was not living in Australia on a permanent basis.

The primary legal issue before the court was to determine whether Mr Dempsey was an "Australian resident" as defined by section 29 of the *Social Security (Administration) Act 1999* (Cth) at the time he made his claim for the age pension. This required an assessment of his physical presence in Australia and his intention to reside there permanently, considering the exceptions outlined in sections 30, 30A, 31, 31A, and 32 of the Act, which were not applicable to his circumstances. Additionally, the court needed to consider whether he satisfied section 43 of the *Social Security Act 1991* (Cth) regarding qualifying Australian residence or other specific criteria for age pension qualification.

The court found that Mr Dempsey's circumstances did not establish that he was residing in Australia at the time of the decision under review. While Mr Dempsey was an Australian citizen and had family in Australia, his pattern of travel and extended stays in Vietnam, where he lived with his partner and her daughter, indicated a lack of permanent residence in Australia. His use of tourist visas in Vietnam, requiring him to depart every three months, did not negate his intention to reside there. Consequently, the court set aside the AAT's decision and substituted a new decision finding that Mr Dempsey was not an Australian resident for the purposes of section 29 of the Act during the relevant period.